The New Work Health Safety Laws: Should we be worried?
An Overview of the Act for Residential Strata Schemes
The focus of regulation under the Work Health and Safety Act 2011 (the WHS Act) is a person conducting a business or undertaking (PCBU).
What is a PCBU?
A PCBU:
- Includes a person conducting the business or undertaking alone or with others (s5(1)(a))
- Is a PCBU whether or not the business or undertaking is conducted for profit or gain (s5(1)(b))
- Includes a business or undertaking conducted by a partnership or unincorporated association (s5(2))
A body corporate is a PCBU for the purposes of the WHS Act, which, of course, includes an owners corporation.
The exemption
Regulation 7 of the Work Health and Safety Regulations 2011 (WHS Regulations) gives an exemption to an owners corporation, a “strata title body corporate”, where:
- Any of the common property is used only for residential purposes
- The owners corporation does not engage any worker as an employee
Who gets the exemption?
- Residential schemes
- Mixed use schemes
As long as they do not engage any worker as an employee.
Who is still covered by the WHS Act?
- Residential and mixed use schemes that engage an employee
- Company title buildings
- Community associations
- Commercial and retail strata schemes
Will we still get an exemption if…
Owners/occupiers work from home? Yes
- The owners corporation is not engaging anyone as an employee
- The owner or occupier is responsible for their own health and safety
- The duty of the lot owner cannot be transferred to another person (s14)
- The work in the lot does not change the nature of the common property
Owners/occupiers have babysitters or cleaners? Yes
- The owners corporation is not engaging anyone as an employee
- The cleaner or babysitter is responsible for their own health and safety or the owner/occupier is responsible as their employer
- The duty of the person cannot be transferred to another person (s14)
- the work in the lot does not change the nature of the common property
Owners/occupiers volunteer to clean up the common property? Yes
- The exemption is only avoided if the owners corporation engages a worker as an employee
- Volunteers are not employees
- Volunteer work in a working bee does not change the nature of the common property
The owners corporation retains a contractor? Yes
- The owners corporation is not engaging anyone as an employee
- The contractor is responsible for its own health and safety and that of its employees
- The contractor “cannot transfer [its duties] to another person”
Should we get an OHS or WHS report?
- There is no provision in the Strata Schemes Management Act 1996 requiring an owners corporation to obtain an OHS or WHS report
- The WHS Act and Regulations do not apply to a residential or mixed-use strata scheme as a PCBU (unless they employ someone), but they have third party obligations.
- There can be adverse consequences of obtaining a report:
- costs of engaging an expert
- costs of otherwise unnecessary rectification work
- insurers may decline to insure due to inappropriate comments
This doesn’t mean owners can ignore their obligation to repair and maintain the common property. Building reports assist in identifying work that needs to be done and that MUST be done.
The information contained in this leaflet is a guide only and relates to residential strata schemes and mixed use strata schemes comprising residential lots and commercial or retail property.
If you have any questions about the application of the WHS Act or Regulations to your strata scheme, please contact us.
